The main legal point established is that the suit for delayed delivery of goods must be filed within the limitation period prescribed under the Limitation Act, and a notice under Section 10 of the Carriers Act must be issued to the carrier.

JUDGMENT :

H.B. Prabhakara Sastry, J.

This is a plaintiff's appeal. The appellant had instituted a suit against the present respondent in the Court of the XXXI Additional City Civil Judge, Bangalore City (CCH-14) (hereinafter for brevity referred to as "Trial Court") in O.S.7284/2003 for recovery of a sum of Rs.89,887-50 with interest at the rate of 18% per annum thereupon.

2. The summary of the case of the plaintiff in the Trial Court was that, the plaintiff is a manufacturer of packaging materials. It had consigned 670 printing corrugated boards for its transport from Bengaluru to Noida with the defendant Company which is a transport operator. The goods were valued for a sum of Rs. 52,260/- and were delivered to the defendant on 19-02-1999, who raised a consignment note in that regard bearing No.14935. The consignee - M/s. BPL Ltd. was in urgent need of these goods, as such, it had requested the defendant to deliver the goods as early as possible.

It was informed by M/s. BPL Ltd. by its letter dated 08-10-1999 to the plaintiff that they have not accepted the goods tendered to them by the defendant since there was delay in delivery of the goods. The said consignee - M/s. BPL Ltd. has stated that the goods were offered for its delivery to it only on 19-09-1999, after delay of seven months. As such, it has returned the goods without accepting the delivery of the same.

The plaintiff has further contended that it brought the same to the notice of the defendant, who agreed to refund the value of the goods at Rs. 52,260/-, however, it postponed the payment. Despite issuance of legal notice, since the defendant did not meet the demand, the plaintiff was constrained to institute a suit for recovery of money from the defendant.

3. In response to the summons served upon it, the defendant - Company appeared through its counsel and filed its Written Statement where it has denied all the plaint averments. However, it stated that it had tendered the goods for delivery on 26-02-1999, but the same was refused by the Stores Officer of the consignee - Company and thereafter the defendant immediately addressed a letter dated 27-02-1999 to the plaintiff informing about this fact. The defendant stated that there was no delay on its part in transporting the goods. However, it was the consignee who refused to accept the delivery of the goods. The defendant denied its liability to pay any amount to the plaintiff much less a sum of Rs. 52,260/-. On the contrary, it contended that the goods are stored in the store house of the defendant Company and the plaintiff can collect those goods which are in good condition after paying the demurrage and storage charges. The defendant more specifically contended that the suit was hopelessly barred by limitation. It also stated that it was not issued with any notice under Section 10 of the Carriers Act by the plaintiff before institution of the suit.

4. Based on the pleadings of the parties, the Trial Court framed the following issues for its consideration:-

"(1) Whether the plaintiff proves that the defendant was under obligation to transport 670 corrugated boards manufactured by them to the consignee, i.e. M/s. BPL Ltd., C-33, Phase II, Noida- 201305, Dist. Gaziabad, U.P. vide invoice No.1181? dated 19.2.99 as early as possible?

(2) Whether the plaintiff further proves that the defendant made delayed delivery to the said consignee on 19.9.99?

(3) Whether the defendant proves that the consignee, i.e. M/s. BPL Ltd., is a necessary party?

(4) What order or decree?"

In order to prove its case, the plaintiff Company got examined one Sri. C. Vijayakumar as PW-1 and got marked documents at Exs.P-1 to P-10. On behalf of the defendant Company, one Sri. M.M. Usman Ali was examined as DW-1 and documents from Exhibits D-1 to D-3 were got marked.

5. After hearing both sides, the Trial Court in its judgment and decree dated 30-03-2011 while answering issue Nos.1 and 2 in the 'affirmative' and issue No.3 in the 'negative', dismissed the